HZAAG v Minister for Immigration
[2012] FMCA 720
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HZAAG v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 720 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – applicant failing to attend before delegate or Tribunal – unparticularised and general grounds of application – no jurisdictional error indentified. |
| Migration Act 1958 (Cth) |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | HZAAG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | LNG 17 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 3 August 2012 |
| Date of Last Submission: | 3 August 2012 |
| Delivered at: | Hobart (via video link from Hobart to Melbourne & Sydney) |
| Delivered on: | 28 August 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms N. Richards |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNG 17 of 2012
| HZAAG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 23 February 2012. The Tribunal concluded that the applicant was not a person to whom Australia owed Refugee Convention protection. For the reasons that follow, I do not think that the Tribunal fell into jurisdictional error and the application must be dismissed.
The applicant is a citizen of India who arrived in Australia on
14 August 2009 on a student visa. On 15 August 2011 he lodged an application for a protection visa and made claims under the Convention. The claims made in support of the application are set out at Court Book (“CB”) 29-30. It is fair to say that they are made in general terms and can be categorised as giving ground to a fear of persecution on the basis of the applicant's asserted activities as a member of the Akali Dal Party and various related Sikh activist groups.
On 14 September 2011, the delegate of the Minister wrote to the applicant at his address in Tasmania, being the address given by him in his application, inviting him to contact the Department within seven days to arrange an appointment. The applicant did not do so, and on
17 October 2011 the delegate dismissed the application (see CB 41-56).
The delegate noted that the applicant had failed to contact the Department to attend an interview and the Decision, therefore, had to be based on the statements on file. The delegate said at CB 54:
“… The applicant's claims are based on broad statements that lack any real detail, such as specific dates and names of people involved in the claimed harassment, upon which their credibility can be tested. All claims are unsupported by documentary evidence. The claims rely on generalised statements regarding historical conflicts between Sikhs and other elements within the Indian community, involvement with Akali Dal, and vague claims regarding threats and intimidation at the "... hands of the authorities". Given the lack of information provided by the applicant, I am unable to accept the credibility of his account. Not only has he included few details but I also note that he was invited to contact the Department to further discuss his claims and did not do so. This strongly suggests that he does not have a genuine fear of harm.”
Having made various other comments critical of the applicant's case, and noting the lengthy delay between arrival in Australia on 14 August 2009 and the protection application lodged on 15 August 2011, the delegate dismissed the application.
The applicant lodged his application to the Tribunal and was sent an invitation to appear before the Tribunal on 24 January 2012 (CB 65-67). He did not attend.
The Tribunal traversed the materials filed. The Tribunal noted that the correspondence from the Tribunal had been correctly sent to the applicant as the postal address he provided to the Tribunal was the same as in his protection visa application. The Tribunal said at paragraphs 38-40 (CB 72):
“38. Had the applicant come to a hearing, the Tribunal would have asked him for more detailed information about the nature and extent of his involvement in Sikh political groups in India and for further information about any adverse consequences this involvement had for him. The Tribunal would also have explored what the applicant fears might follow his return to India including to establish whether the harm he fears is of a kind which could constitute persecution as the term is applied in Australia's refugee law.
39. The applicant has had the opportunity to provide additional information in support of his claims but he has not done so. There is insufficient information before the Tribunal to determine whether there is a real chance that the applicant would face persecution within the meaning of the Refugees Convention if he were to return to India in the reasonably foreseeable future.
40. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention.”
Against that background, I come to the application before the Court which lists six grounds.
Ground 1
The first ground asserts that:
“1. RRT has erred in their decision, as given on 24/02/2012. As the applicant was not sent a letter for any interview, the letter was not received by the applicant. The applicant however, comments on the statement of decision is that, this decision is without jurisdiction. The decision is based on the conjectures, and upon the information’s received by the RRT through the Indian sources. These sources are not reliable, and specially in the matters of the Khalistan Movements these information’s are based on the fraudulent intentions.”
The applicant has filed no submissions in support of his application and the only other document he has filed is an affidavit filed on 19 March 2012. This makes a number of factual assertions which do not, in the context of the materials as a whole, take the matter further.
The Minister submits that the ground is not a valid ground for review as it alleges no jurisdictional error and "it appears to amount to no more than a complaint about the decision reached by the Tribunal as to the merits of the claim" (paragraph 23, first respondent’s submissions).
As it was pointed out by the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
“By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. … The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
I was at first concerned by the applicant's assertion that he had not received the invitation to the Tribunal but, as matters emerged in Court, this was not the case. First, I was informed, without contradiction, by counsel for the Minister that the applicant did not change his address from the one in Tasmania until after the application for review in this Court had been filed. He has, it is clear, since moved to New South Wales. Further, in his submissions in reply, the applicant, if I understood him correctly, appeared to me to say that he had not attended the first hearing before the delegate as it was optional and that ill-health, in the form of mental ill-health caused by stress, had prevented him from attending before the Tribunal.
It is quite clear that the applicant was given a proper opportunity to attend both before the delegate and the Tribunal and for whatever reason, did not avail himself of that opportunity.
Insofar as ground 1 asserts that the decision was based on conjecture and makes criticism of the country information, it seems to me that those criticisms fall exactly into the characterisation advanced by the submissions of the first respondent. They are plainly merits review of a kind that is not permissible.
Ground 2
“Furthermore, decisions maker in RRT erred in making a decision, as the RRT was gone in to baseless questions, in fact the Khalistan Movement, and the peoples working for them have been done to death or they were disposed off by means of the extra-judicial killings. The objective requirements were not fulfilled nor the subjective requirements were addressed. Many of the issues remained unanswered in the statement of decision.”
Ground 2 suggests a criticism once again in relation to assessment of country information and goes on to assert:
"many of the issues remained unanswered in the statement of decision".
To the extent this is intelligible, I would only say that the matters of the treatment of country information fall into the same difficulty as ground 1. Given that the Tribunal's Decision was squarely based on the failure of the applicant to attend and/or provide necessary additional information, there simply is no room for the criticism of the Tribunal's asserted failure to address relevant issues.
Ground 3
“RRT also stated that many of the information were not provided, yet as a decision maker, they never asked for it.”
This ground once again, in my opinion, fails to properly understand the matter. It was for the applicant to make his case. The applicant asserted before the Court at hearing that he was still awaiting the receipt of information from the security authorities in India. When asked if he wished to apply for an adjournment, the applicant expressly indicated that he did not. All the Tribunal noted, to the extent that it said anything about this at all, was that the applicant had not provided such information and it was quite correct to do so.
Ground 4
“At paragraph 34, the decision maker says that the applicant shall provide the documents from the security agencies, it is submitted that the applicants friends were trying to get the documents, but the applicant was told that the security agencies never issue such evidence, the applicant was of the view that the applicant may be able to get the documents. The friends of the applicant told the applicant that these documents can not be issued to any person. These documents belong to the DEEP STATE. The other parts of the decision only repeats the wording of the applicants claim. The RRT made a gross violation of justice by the natural justice Phenomena. This is right given to the applicant by the natural justice phenomena. It is respectfully submitted that the RRT has gone beyond its jurisdiction and has made a decision which carries lot of questions raised by the applicant by virtue of his claim submitted by way of evidence.”
Ground 4 is difficult to understand. Insofar as it complains of issues to do with reports from security agencies, it faces the difficulties referred to in ground 3. It does not seem to me that the Tribunal can be said to have fallen into any error in relation to the way in which it dealt with the issue of documentation from India for the reasons I have already given.
Ground 5
“That the applicant by virtue of his experience has learnt, and also by other source of information’s that the RRT does not consider the amount of the persecution faced by the applicants in many matters.”
Ground 5 appears to relate to a matter purely of merits review.
Ground 6
“It is widely understood that All India Sikh student federation is banned by the Indian authorities like many other Sikh organisation, information regarding ASIIF is available on the Khalistan movement website. There are many other sister organisation of the Sikhs, although not described here, all of them faces the ban.”
Ground 6, once again, appears to relate to a criticism on the basis of complaints about country information and the way in which it was treated. It faces exactly the difficulties to which I have already referred. The reality is that the Tribunal was entitled to rely upon country information and did so in a way that was unexceptional. Any deficiencies in the country information arose out of the applicant's own conduct.
Putting the matter shortly, none of the matters raised by the applicant gives rise to any suggestion of jurisdictional error on the part of the Tribunal. To the extent that they are intelligible, they raise matters purely of merits review.
It is important to remember that the Tribunal dealt with the matter on the basis of the material before it. The applicant failed to provide any additional material, either to the delegate or to the Tribunal itself. The Tribunal's conclusion that there was insufficient material to justify a conclusion that the applicant was a person to whom Australia owed Convention obligations seems, with respect, to me to be entirely correct. Indeed, there is considerable force prima facie, in my view, to the more critical observations advanced by the delegate.
For all these reasons, the application must be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 28 August 2012
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